This summer, the Copyright Office released a study on Section 1201 of the Digital Millennium Copyright Act. Section 1201 is the provision of the law that allows copyright owners to digitally lock you out of your own stuff, preventing everything from connecting your cellphone to a different carrier, to ripping your DVDs to your tablet, to accessing the diagnostic system in your car. We’ve long advocated for reforming this law which unnecessarily limits user rights, and actively participated in the Office’s study of Section 1201. The resulting report is less than we hoped for; while the Office has recommended some important and needed changes to the law and its application, it mostly leaves the law in place and has us asking what could have been. The report does, however, reveal something interesting about how the Copyright Office thinks about Section 1201--namely, when it chooses to believe (or not believe) the users.
Yesterday, the Songwriters of North America (SONA), a songwriter advocacy group, sued the Department of Justice over its interpretation of the antitrust consent decrees governing ASCAP and BMI, the two largest U.S. performance rights organizations (PROs). The lawsuit alleges that the DoJ has, by simply reading the words of the consent decrees, unconstitutionally seized their property. While heavy on rhetoric, the complaint is light on actionable facts. It not only misunderstands the DoJ’s mandate, but is anchored in a breathtakingly overbroad vision of copyright law that should give any sensible observer pause, and serves as a reminder of the Copyright Office’s problematic relationship with industry.
The increasing frequency with which the Copyright Office has inserted itself into policy debates raises questions about the scope of its expertise and authority. An illustrative example of how the Office’s opinions can cause problems occurred earlier this year. During the Department of Justice’s Antitrust Division inquiry into how performance rights organizations (PROs) ASCAP and BMI license songs with multiple authors where not every author is a member of the PRO (i.e., where either PRO represents only a ‘fraction’ of the ownership stake in the song), a member of Congress sought out the opinion of the Copyright Office, and the Office responded. Although it’s unremarkable for an agency to offer its opinion in response to a lawmaker request, it is remarkable for that agency to reach into unfamiliar areas of law, ignore basic public policy concerns in that area of law, and offer its own unqualified judgment on matters properly within the jurisdiction of another agency.
The music publishing industry has reacted in colorful and apocalyptic terms in its response to the leak detailing the expected conclusion of the Department of Justice’s consent decree review, in which the agency extensively examined the antitrust settlements binding the two largest performance rights organizations (PROs) in the nation, ASCAP and BMI. A closer look at Department’s reported conclusions suggests that the music industry response is overblown.
As you may have heard, Google won a major fair use victory yesterday against Oracle involving Google’s implementation of certain Application Program Interfaces (APIs) of the Java programming language in its popular Android mobile operating system. The case has been running for six years, has important consequences for software and innovation, and featured a number of twists and turns. Here’s a guide to what’s happened, why it’s important, and what to expect.
As sure as the fall follows summer, and the sun rises in the east, the sixth triennial DMCA Section 1201 exemption process resulted in the rejection of our request for an exemption for creating private copies of DVDs and Blu Ray discs (DVD/BRDs). Consumers have long sought exemptions for private copying of DVDs, and more recently Blu Ray discs, for purposes ranging from Linux compatibility, to putting videos on home media servers, to making back-up copies in case discs get scratched, to watching them on devices lacking optical drives, like tablets, smartphones, and most modern laptops.
Earlier this week, Judge George H. King of the Central District of California closed the books on Warner/Chappell Music’s claim to own the copyright in “Happy Birthday to You” - a work dubbed “the world’s most popular song.” In a 43 page ruling that was equal parts advanced civil procedure and object lesson in interpreting archival records, Judge King toured the long history of “Happy Birthday to You” (and its melodic forebear, “Good Morning to All”) before ruling that Warner/Chappell had failed to show that they owned any rights in the lyrics.
Shortly after the recent Floyd Mayweather/Manny Pacquiao boxing match, Re/Code published an op-ed that I wrote discussing some of the copyright implications of live video apps like Periscope and Meerkat. In that article I made two points: first, that we should hit pause on a collective panic over Periscope and Meerkat signaling the latest assault on copyrighted video, in part because rightsholders can bring the powerful DMCA notice-and-takedown provisions to bear on the problem, and in part because video streaming live events does not necessarily implicate copyright law.
Earlier this year, Public Knowledge submitted comments to the Copyright Office as part of the Librarian of Congress’s triennial exemption review process, in support of three requests for exemptions to the DMCA’s anti-circumvention provision: